[Congressional Bills 109th Congress]
[From the U.S. Government Publishing Office]
[H.R. 3726 Introduced in House (IH)]







109th CONGRESS
  1st Session
                                H. R. 3726

     To enhance prosecution of child pornography and obscenity by 
 strengthening section 2257 of title 18, United States Code, to ensure 
   that children are not exploited in the production of pornography, 
   prohibiting distribution of child pornography used as evidence in 
 prosecutions, authorizing assets forfeiture in child pornography and 
   obscenity cases, expanding administrative subpoena power to cover 
 obscenity cases, and prohibiting the production of obscenity, as well 
 as its transportation, distribution, and sale, and for other purposes.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                           September 12, 2005

  Mr. Pence introduced the following bill; which was referred to the 
                       Committee on the Judiciary

_______________________________________________________________________

                                 A BILL


 
     To enhance prosecution of child pornography and obscenity by 
 strengthening section 2257 of title 18, United States Code, to ensure 
   that children are not exploited in the production of pornography, 
   prohibiting distribution of child pornography used as evidence in 
 prosecutions, authorizing assets forfeiture in child pornography and 
   obscenity cases, expanding administrative subpoena power to cover 
 obscenity cases, and prohibiting the production of obscenity, as well 
 as its transportation, distribution, and sale, and for other purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    (a) Short Title.--This Act may be cited as the ``Child Pornography 
Prevention Act of 2005''.
    (b) Table of Contents.--The table of contents for this Act is as 
follows:

Sec. 1. Short title.
Sec. 2. Findings.
Sec. 3. Strengthening section 2257 to ensure that children are not 
                            exploited in the production of pornography.
Sec. 4. Prevention of distribution of child pornography used as 
                            evidence in prosecutions.
Sec. 5. Authorizing civil and criminal asset forfeiture in child 
                            exploitation and obscenity cases.
Sec. 6. Enhancing administrative subpoena power to cover obscenity.
Sec. 7. Prohibiting the production of obscenity as well as 
                            transportation, distribution, and sale.

SEC. 2. FINDINGS.

    Congress makes the following findings:
            (1) The effect of the intrastate production, 
        transportation, distribution, receipt, advertising, and 
        possession of child pornography on interstate market in child 
        pornography.
                    (A) The illegal production, transportation, 
                distribution, receipt, advertising and possession of 
                child pornography, as defined in section 2256(8) of 
                title 18, United States Code, as well as the transfer 
                of custody of children for the production of child 
                pornography, is harmful to the physiological, 
                emotional, and mental health of the children depicted 
                in child pornography and has a substantial and 
                detrimental effect on society as a whole.
                    (B) A substantial interstate market in child 
                pornography exists, including not only a multimillion 
                dollar industry, but also a nationwide network of 
                individuals openly advertising their desire to exploit 
                children and to traffic in child pornography. Many of 
                these individuals distribute child pornography with the 
                expectation of receiving other child pornography in 
                return.
                    (C) The interstate market in child pornography is 
                carried on to a substantial extent through the mails 
                and other instrumentalities of interstate and foreign 
                commerce, such as the Internet. The advent of the 
                Internet has greatly increased the ease of 
                transporting, distributing, receiving, and advertising 
                child pornography in interstate commerce. The advent of 
                digital cameras and digital video cameras, as well as 
                videotape cameras, has greatly increased the ease of 
                producing child pornography. The advent of inexpensive 
                computer equipment with the capacity to store large 
                numbers of digital images of child pornography has 
                greatly increased the ease of possessing child 
                pornography. Taken together, these technological 
                advances have had the unfortunate result of greatly 
                increasing the interstate market in child pornography.
                    (D) Intrastate incidents of production, 
                transportation, distribution, receipt, advertising, and 
                possession of child pornography, as well as the 
                transfer of custody of children for the production of 
                child pornography, have a substantial and direct effect 
                upon interstate commerce because:
                            (i) Some persons engaged in the production, 
                        transportation, distribution, receipt, 
                        advertising, and possession of child 
                        pornography conduct such activities entirely 
                        within the boundaries of one State. These 
                        persons are unlikely to be content with the 
                        amount of child pornography they produce, 
                        transport, distribute, receive, advertise, or 
                        possess. These persons are therefore likely to 
                        enter the interstate market in child 
                        pornography in search of additional child 
                        pornography, thereby stimulating demand in the 
                        interstate market in child pornography.
                            (ii) When the persons described in 
                        subparagraph (D)(i) enter the interstate market 
                        in search of additional child pornography, they 
                        are likely to distribute the child pornography 
                        they already produce, transport, distribute, 
                        receive, advertise, or possess to persons who 
                        will distribute additional child pornography to 
                        them, thereby stimulating supply in the 
                        interstate market in child pornography.
                            (iii) Much of the child pornography that 
                        supplies the interstate market in child 
                        pornography is produced entirely within the 
                        boundaries of one State, is not traceable, and 
                        enters the interstate market surreptitiously. 
                        This child pornography supports demand in the 
                        interstate market in child pornography and is 
                        essential to its existence.
                    (E) Prohibiting the intrastate production, 
                transportation, distribution, receipt, advertising, and 
                possession of child pornography, as well as the 
                intrastate transfer of custody of children for the 
                production of child pornography, will cause some 
                persons engaged in such intrastate activities to cease 
                all such activities, thereby reducing both supply and 
                demand in the interstate market for child pornography.
                    (F) Federal control of the intrastate incidents of 
                the production, transportation, distribution, receipt, 
                advertising, and possession of child pornography, as 
                well as the intrastate transfer of children for the 
                production of child pornography, is essential to the 
                effective control of the interstate market in child 
                pornography.
            (2) The importance of protecting children from repeat 
        exploitation in child pornography:
                    (A) The vast majority of child pornography 
                prosecutions today involve images contained on computer 
                hard drives, computer disks, and related media.
                    (B) Child pornography is not entitled to protection 
                under the First Amendment and thus may be prohibited.
                    (C) The Government has a compelling State interest 
                in protecting children from those who sexually exploit 
                them, and this interest extends to stamping out the 
                vice of child pornography at all levels in the 
                distribution chain.
                    (D) Every instance of viewing images of child 
                pornography represents a renewed violation of the 
                privacy of the victims and a repetition of their abuse.
                    (E) Child pornography constitutes prima facie 
                contraband, and as such should not be distributed to, 
                or copied by, child pornography defendants or their 
                attorneys.
                    (F) It is imperative to prohibit the reproduction 
                of child pornography in criminal cases so as to avoid 
                repeated violation and abuse of victims, so long as the 
                Government makes reasonable accommodations for the 
                inspection, viewing, and examination of such material 
                for the purposes of mounting a criminal defense.

SEC. 3. STRENGTHENING SECTION 2257 TO ENSURE THAT CHILDREN ARE NOT 
              EXPLOITED IN THE PRODUCTION OF PORNOGRAPHY.

    Section 2257 of title 18 of the United States Code is amended--
            (1) in subsection (a)(l), by striking ``actual'';
            (2) in subsection (b), by striking ``actual'';
            (3) in subsection (f)(4)(A), by striking ``actual'';
            (4) by amending paragraph (1) of subsection (h) to read as 
        follows:
            ``(1) the term `sexually explicit conduct' has the meaning 
        set forth in subparagraphs (A)(i) through (v) of paragraph (2) 
        of section 2256 of this title;'';
            (5) in subsection (h)(4), by striking ``actual.'';
            (6) in subsection (f)--
                    (A) at the end of paragraph (3), by striking 
                ``and'';
                    (B) at the end of paragraph (4)(B), by striking the 
                period and inserting ``; and''; and
                    (C) by inserting after paragraph (4)(B) the 
                following new paragraph:
            ``(5) for any person to whom subsection (a) applies to 
        refuse to permit the Attorney General or his or her delegee to 
        conduct an inspection under subsection (c).''.
            (7) in subsection (h)(3), by striking ``to produce, 
        manufacture, or publish any book, magazine, periodical, film, 
        video tape, computer generated image, digital image, or 
        picture, or other similar matter and includes the duplication, 
        reproduction, or reissuing of any such matter, but does not 
        include mere distribution or any other activity which does not 
        involve hiring, contracting for managing or otherwise arranging 
        for the participation of the performers depicted'' and 
        inserting ``actually filming, videotaping, photographing; 
        creating a picture, digital image, or digitally- or computer-
        manipulated image of an actual human being; or digitizing an 
        image, of a visual depiction of sexually explicit conduct; or, 
        assembling, manufacturing, publishing, duplicating, 
        reproducing, or reissuing a book, magazine, periodical, film, 
        videotape, digital image, or picture, or other matter intended 
        for commercial distribution, that contains a visual depiction 
        of sexually explicit conduct; or, inserting on a computer site 
        or service a digital image of, or otherwise managing the 
        sexually explicit content, of a computer site or service that 
        contains a visual depiction of, sexually explicit conduct'';
            (8) in subsection (a), by inserting after ``videotape,'' 
        the following: ``digital image, digitally- or computer-
        manipulated image of an actual human being, or picture,''; and
            (9) in subsection (f)(4), by inserting after ``video'' the 
        following: ``digital image, digitally- or computer-manipulated 
        image of an actual human being, or picture,''.

SEC. 4. PREVENTION OF DISTRIBUTION OF CHILD PORNOGRAPHY USED AS 
              EVIDENCE IN PROSECUTIONS.

    Section 3509 of title 18, United States Code, is amended by adding 
at the end the following:
    ``(m) Prohibition on Reproduction of Child Pornography.--
            ``(1) In any criminal proceeding, any property or material 
        that constitutes child pornography (as defined by section 2256 
        of this title) must remain in the care, custody, and control of 
        either the Government or the court.
            ``(2)(A) Notwithstanding rule 16 of the Federal Rules of 
        Criminal Procedure, a court shall deny, in any criminal 
        proceeding, any request by the defendant to copy, photograph, 
        duplicate, or otherwise reproduce any property or material that 
        constitutes child pornography (as defined by section 2256 of 
        this title), so long as the Government makes the property or 
        material reasonably available to the defendant.
            ``(B) For the purposes of subparagraph (A), property or 
        material shall be deemed to be reasonably available to the 
        defendant if the Government provides ample opportunity for 
        inspection, viewing, and examination at a Government facility 
        of the property or material by the defendant, his or her 
        attorney, aid any individual the defendant may seek to qualify 
        to furnish expert testimony at trial.''.

SEC. 5. AUTHORIZING CIVIL AND CRIMINAL ASSET FORFEITURE IN CHILD 
              EXPLOITATION AND OBSCENITY CASES.

    (a) Conforming Forfeiture Procedures for Obscenity Offenses.--
Section 1467 of title 18, United States Code, is amended--
            (1) in subsection (a)(3), by inserting a period after ``of 
        such offense'' and striking all that follows; and
            (2) by striking subsections (b) through (n) and inserting 
        the following:
    ``(b) The provisions of section 413 of the Controlled Substance Act 
(21 U.S.C. 853) with the exception of subsection (d), shall apply to 
the criminal forfeiture of property pursuant to subsection (a).
    ``(c) Any property subject to forfeiture pursuant to subjection (a) 
may be forfeited to the United States in a civil case in accordance 
with the procedures set forth in chapter 46 of this title.''.
    (b) Amendments to Child Exploitation Forfeiture Provisions.--
            (1) Criminal forfeiture.--Section 2253(a) of title 18, 
        United States Code, is amended--
                    (A) in the matter preceding paragraph (1) by--
                            (i) inserting ``or who is convicted of an 
                        offense under sections 2252B or 2257 of this 
                        chapter,'' after ``2260 of this chapter'';
                            (ii) inserting ``, or 2425'' after ``2423'' 
                        and striking ``or'' before ``2423''; and
                            (iii) inserting ``or an offense under 
                        chapter 109A'' after ``of chapter 117''; and
                    (B) in paragraph (I), by inserting ``, 2252A, 2252B 
                or 2257'' after ``2252''.
            (2) Civil forfeiture.--Section 2254(a) of title 18, United 
        States Code, is amended--
                    (A) in paragraph (1), by inserting ``, 2252A, 
                2252B, or 2257'' after ``2252'';
                    (B) in paragraph (2)--
                            (i) by striking ``or'' and inserting ``of'' 
                        before ``chapter 117'';
                            (ii) by inserting ``, or an offense under 
                        section 2252B or 2257 of this chapter,'' after 
                        ``Chapter 117,'' and
                            (iii) by inserting ``, or an offense under 
                        chapter 109A'' before the period; and
                    (C) in paragraph (3) by--
                            (i) inserting ``, or 2425'' after ``2423'' 
                        and striking ``or'' before ``2423''; and
                            (ii) inserting ``, a violation of section 
                        2252B or 2257 of this chapter, or a violation 
                        of chapter 109A'' before the period.
    (c) Amendments to RICO.--Section 1961(1)(B) of title 18, United 
States Code, is amended by inserting ``2252A, 2252B,'' after ``2252''.

SEC. 6. ENHANCING ADMINISTRATIVE SUBPOENA POWER TO COVER OBSCENITY.

    Section 3486(a)(l) of title 18, United States Code, is amended--
            (1) in subparagraph (A)(i), by striking ``children,'' and 
        inserting ``children; or (III) a Federal offense involving the 
        distribution of obscenity,''; and
            (2) by inserting after subparagraph (D) the following:
                    ``(E) As used in this paragraph, the term `Federal 
                offense involving the distribution of obscenity' means 
                an offense under section 1460, 1461, 1462, 1465, 1466, 
                1468, or 1470.''.

SEC. 7. PROHIBITING THE PRODUCTION OF OBSCENITY AS WELL AS 
              TRANSPORTATION, DISTRIBUTION, AND SALE.

    (a) Section 1465.--Section 1465 of title 18 of the United States 
Code is amended--
            (1) by inserting ``Production and'' before 
        ``Transportation'' in the heading of the section;
            (2) by inserting ``produces with the intent to transport, 
        distribute, or transmit in interstate or foreign commerce, or 
        whoever knowingly'' after ``whoever knowingly'' and before 
        ``transports or travels in''; and
            (3) by inserting a comma after ``in or affecting such 
        commerce''.
    (b) Section 1466.--Section 1466 of title 18 of the United States 
Code is amended--
            (1) in subsection (a), by inserting ``producing with intent 
        to distribute or sell, or'' before ``selling or transferring 
        obscene matter,'';
            (2) in subsection (b), by inserting, ``produces'' before 
        ``sells or transfers or offers to sell or transfer obscene 
        matter''; and
            (3) in subsection (b) by inserting ``production,'' before 
        ``selling or transferring or offering to sell or transfer such 
        material.''.
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